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Two weeks after a state district judge ruled that pretrial electronic monitoring records for two criminal defendants were a public record, the state Supreme Court this week unexpectedly blocked public release of GPS data, except in certain instances.
In a surprise order, the court stated that as a general rule, pretrial services records are confidential and shouldn’t be made part of any public record unless admitted in a court proceeding.
The order came two days before the 2nd Judicial District Court was legally required to respond to a Journal public records request seeking limited GPS data information on three defendants charged with felony crimes in Albuquerque. The Journal asked for records on three criminal defendants who either absconded while on a GPS ankle bracelet monitor or were suspected of committing serial burglaries while on pretrial release after the judge’s ruling such documents were public record.
On Wednesday, District Court officials denied the Journal’s request for the GPS data. Court administrator Katina Watson cited the just-released Supreme Court order and a controversial provision of law enacted in May that allows law enforcement officers access to the tracking information under limited circumstances.
The GPS order from the state’s highest court punctuated a long-running debate over the court’s pretrial services supervision of defendants who are released on criminal charges while they wait for resolution of their cases.
Unlike in many decisions from the Supreme Court, its new GPS order wasn’t based on a specific case pending before the court, and no written arguments or public input were solicited beforehand.
“This is a standalone order issued by the Court, similar to the many orders issued by the court during the pandemic to establish protocols for the safe operation of courts,” said court spokesman Barry Massey.
The Supreme Court didn’t specify what prompted its order, but noted a new section of state law that addresses how and when law enforcement can obtain GPS data. Courts that monitor defendants released by judges under supervision programs “have a vested interest in a uniform policy” in court processes through established procedures, the order states.
But the timing of the order was considered somewhat unusual.
The question of whether GPS records are public under the state Inspection of Public Records was raised by Bernalillo County District Attorney Raúl Torrez in a lawsuit filed last December. He sued after 2nd Judicial District court officials denied his office’s request for GPS records related to two high-profile criminal defendants who were believed to have committed new crimes while on pretrial supervision that included GPS monitoring.
His earlier attempt to seek such information via a subpoena wasn’t successful and law enforcement officials had expressed frustration accessing such data when necessary to solve crimes in which defendants on pretrial release were suspected.
But Sandoval County District Judge James Noel ruled on Aug. 1 that the DA’s office was entitled to the data under the state public records law and that such records weren’t confidential, as court officials in Albuquerque had contended.
On Aug. 11, 2nd Judicial District Court officials appealed Noel’s decision to the state Court of Appeals; they dropped that appeal on Wednesday after the Supreme Court issued its order.
The Supreme Court didn’t specify what prompted its order, but noted the new section of state law that authorizes law enforcement to obtain GPS data without a warrant.
Torrez told the Journal on Wednesday, it is “unfortunate that the Supreme Court issued this order without any input or consultation with police or prosecutors, but not surprising in light of the language inserted into the recently passed omnibus crime bill.”
“The district attorneys objected to that language precisely because it could be misinterpreted to create a new privacy right for some of the most dangerous criminal defendants in our state and unnecessarily limit law enforcement’s access to information that could potentially help them solve outstanding crimes,” Torrez added.
Adrianne Turner, general counsel for the Law Office of the Public Defender, told the Journal in an email that the order “was not part of the rule-making process, which allows public comment. As such, we did not provide comment.
“This gives clear direction to courts to work with law enforcement, including a form they can fill out, to get GPS data without exposing a person’s private information to anyone at any time or having it become public information. Consistent with the recent statute adopted last legislative session, the court requires that in order to get the data, police and prosecutors need to show some reason beyond mere curiosity or a fishing expedition.”
Based on Noel’s ruling, the Journal filed its IPRA request for GPS location data on defendants who included a second-degree murder suspect who cut off his GPS ankle bracelet and an accused sex offender who has absconded after removing his ankle bracelet just after he pleaded guilty to the charge in July. Both were still at large on Wednesday.
Melanie Majors, interim executive director of the nonprofit New Mexico Foundation for Open Government, said Wednesday, “We’re disappointed with the court’s determination. FOG believes providing the public with access to information results in better government.”
The Supreme Court order states that GPS records shall only be disclosed to law enforcement, and to no other individual or entity prior to trial. And the order goes further than the new law by making most pretrial services records, not just GPS data, confidential.
Law enforcement officers can obtain the data for the prior seven days of a defendant’s location monitoring in cases where there is an “immediate, credible threat of physical harm to members of the public.” And a written request must be filed.
Defendants on ankle monitoring are also to be notified of “the confidentiality provisions relevant to GPS records.”
In his ruling in the IPRA case, Noel didn’t address the new provision inserted into a comprehensive crime bill by a Senate committee during the session because the DA’s public records request case was filed before the Legislature enacted the new law.
That new legislative provision defines the circumstances in which electronic monitoring records kept by the pretrial services supervision program are to be made available to law enforcement without a warrant. The law requires law enforcement to have reasonable suspicion to believe the data will be probative in an ongoing and pending criminal investigation and that the data be not more than a year old. The data, it states, “shall not be made a part of any public record unless admitted as evidence during a criminal trial.”
Some lawmakers said that section of the law would help in crime fighting, but New Mexico’s 14 district attorneys sent a letter to Gov. Michelle Lujan Grisham asking her to line-item veto that section of the new crime package. They said the GPS language in the bill was inserted without their input. But as it turned out, under the state Constitution, such a line item veto wasn’t possible.
The Supreme Court order didn’t mention Noel’s ruling, nor did it address IPRA.
Torrez said Wednesday he hoped “lawmakers in Santa Fe will reconsider their approach to this important issue during the upcoming legislative session and invite prosecutors to fully participate in the process for the sake of public safety and open, transparent government.”